by Nupur Raut and Ashwin Pantula
We live in a world where the language of rights may easily (and most often justifiably) be appropriated by, or for the benefit of, a given stakeholder in a situation. India’s fundamental rights, set out in Part III of the Constitution, have oft been read to include newer and more diverse rights within their framework. This is usually done to keep the Constitution up to date with the changing times. Sometimes, it may be done to reflect an ongoing international philosophical debate, such as right to life of an unborn child.
A recent set of decisions by the Rajasthan High Court, for example, recognised the right to life of the unborn child under Article 21 of the Constitution of India. The decisions reflect a popular debate going on in many parts of the world and some regions of India as to whether an unborn child has the right to life: whether it should not be aborted, and whether it has the right to be born.
Article 21 is a negative right that states that no person shall be deprived of their right to “life and personal liberty” except per procedure established by law. However, is the unborn child a person? Is this debate part of the mainstream political discourse in India? Should it be reflected in the law? In this article, we look at the decisions themselves, along with the law in other jurisdictions, to understand whether such a right ought to be recognised under Article 21.
The Decisions of the Rajasthan High Court
In October 2019, a Single Judge of the Rajasthan High Court refused to grant the relief of medical termination of pregnancy sought by a 17-year old rape survivor (hereinafter ‘S’). The facts of the case were as follows: S first approached a lower court (Special Judge, POCSO Act Cases) seeking an order allowing her to medically terminate her pregnancy as the said pregnancy was a result of an act of penetrative sexual assault committed upon her. The lower court held that it did not have the jurisdiction to grant the relief sought by her, because the gestation period had gone beyond the 20 weeks’ limit stipulated under the Medical Termination of Pregnancy Act, 1971 (hereinafter ‘MTP Act’). S thereafter approached the High Court, where her case was heard by a Single Judge. In a medical test ordered by the Single Judge, the Medical Board found that although the foetus was 25 weeks old, there was no serious threat to the life of S if the pregnancy was terminated medically. As a note of caution, however, the Medical Board added that the possibility of known medical or surgical complications could not be ruled out. Meanwhile, a society that ran an orphanage filed an application stating that it was willing to bear all the expenses in the upbringing of the child, and thus requested the High Court to not grant the relief sought by S. On being apprised of this development, S reiterated that she wanted to terminate her pregnancy.
The Single Judge, believing that he was faced with a difficult situation, thought it fit to juxtapose the rights of the mother with those of the foetus. Based on the assumption that after six weeks from conception, an embryo comes to life and transforms into a foetus, the Single Judge opined that the right to life of the foetus merited “equal protection, if not more.” The Single Judge was nevertheless cognizant of the Supreme Court’s ‘pro-reproductive autonomy’ decision in Suchita Srivastava v. Chandigarh Administration. In that case, the Supreme Court had held that a woman’s right to abort was an aspect of her ‘personal liberty’ guaranteed under Article 21. Therefore, the Single Judge was certain that order of termination of pregnancy, as repeatedly prayed for by S, was perfectly legal. Such an order is what is usually expected of courts in such cases, once it has made sure that there is no threat to the pregnant woman’s life.
However, the Single Judge’s belief that the foetus has ‘life’ and achieves complete formation within 16-20 weeks led him to look for creative avenues. He wiggled his way out with the help of the very judgment that had held a woman’s right to abort was guaranteed to her under Article 21. In Suchita Srivastava (supra), the apex court had also spoken of a ‘compelling state interest’ in protecting the life of the prospective child and had opined that the provisions of the MTP Act could be viewed as reasonable restrictions on the exercise of reproductive choices.
Strangely, the Single Judge took this to mean that medical termination of pregnancy is a statutory right with constitutional underpinnings. At the same time, he was of the opinion that the right to life of the foetus (or what we have interchangeably called the ‘right to be born’) flows directly from Article 21. Thus, undertaking a balancing test, he concluded that the woman’s right to reproductive autonomy, being only a facet of the right to life, had to give way to a per se right to life of the foetus.
The Single Judge did not analyse any scientific evidence to conclude that an embryo comes to life at six weeks. Significantly, the text of Article 21 does not specify that the unborn child is also a person and has a right to life. The Single Judge, therefore, sought to “read” the right to life of the unborn child into Article 21, much like the rights to privacy and environment have been read into the Constitution by the Supreme Court.
While reinterpreting the apex court’s existing position promoting reproductive autonomy, the Single Judge ought to have been more forthcoming in his reasoning and in justifying such departure. Instead, there is an attempt to substitute reasoning with expressions aimed at evoking sympathy for a foetus – “a baby to be born, who can caress or kick her mother but does not have a voice of its own”, “a human being which to is alive, though yet to be born”.
The State of Rajasthan filed a writ appeal against the Single Judge’s judgment in a bid to protect the rights of future victims of rape or penetrative sexual assault. By the time the writ appeal proceedings got over and the Division Bench reserved its judgment, it was already past the due date for delivery. S did not participate in the writ appeal proceedings. Although the main prayer sought by S had become infructuous, the Division Bench set aside the decision of the Single Judge, while saving the directions given by the latter for the child’s welfare.
It found that reproductive choice was a fundamental right, as recognised by the apex court in Suchitra Srivastava (supra) and that the Single Judge’s order failed to protect the personal liberty of S. However, the Division Bench did not adequately deal with the issue of foetus’ right to be born. As a matter of fact, by repeatedly stating that a pregnant woman’s right to choose abortion ‘heavily outweighed’ the right of a foetus, it further reinforced that a foetus has the right to life.
A lot can be said about the procedural delays that eventually rendered the writ appeal proceedings meaningless for S personally. However, for the present purposes, we confine ourselves to analysing the Rajasthan High Court’s proposition that a foetus has a fundamental right to be born under the scheme of the Indian constitution. In the next part of the article, we look at the law on the right to life of the unborn child in various jurisdictions and try to understand whether the Indian Constitution permits the right to life of the unborn child to be read into Article 21’s guarantee of a right to life to every person.
The Right of the Unborn Foetus and the Law Across Jurisdictions
Those who believe that a foetus has a right to be born argue that human life begins from conception, and therefore, that the foetus has legal rights just as any other person. The notion that human life begins from conception is prevalent in some forms of Christianity. This informs the views of several ‘pro-life’ activists around the world, who believe that the right of the foetus to be born should take precedence over the pregnant woman’s right to choose to terminate her pregnancy. However, this pro-life/pro-choice debate has not been a part of the mainstream socio-political discourse in India. This may be because India is a Hindu majority and most people do not consider themselves forbidden by religion from aborting. It may also be that this lack of opposition has informed mainstream socio-political discourse, leading to the debate finding very little mention in legislation, executive orders, or judicial decisions. As discussed earlier, the Supreme Court in Suchita Srivastava (supra)upheld the right of a woman to choose an abortion as part of her right to personal liberty under Article 21, but not without holding that there is a “‘compelling state interest’ in protecting the life of the prospective child”. The provisions of the Medical Termination of Pregnancy Act, 1971 were taken as the “procedure established by law” that would impose reasonable restrictions on the exercise of reproductive choice by the pregnant woman. Notably, while the Suchita Srivastava case holds that there is a “compelling state interest” to protect the life of the unborn child, it does not mention that this interest is somehow derived from an Article 21 right to life of the unborn child.
International instruments are largely silent on the question of the right to life of the unborn child. One of the only references to the interests of the unborn child is found in the preamble to the Declaration of the Rights of the Child, 1959. It states that the child needs “special safeguards and care, including appropriate legal protection, before as well as after birth”. This is also referred to in the preamble to the Convention on the Rights of the Child. There have, however, been attempts to read a right to life of the unborn child into the right-to-life provisions of regional instruments.
The European Convention on Human Rights does not specifically provide for the right to life of the unborn child. The question was asked several times of it. However, it has been neatly sidestepped by the erstwhile European Commission of Human Rights, and its successor in dealing with individual applications, the European Court of Human Rights, on various occasions. This was done to allow different states to enact their own laws in accordance with the prevailing political sentiment in the state on the right to life of foetuses. In one case, the European Commission held that Article 2 of the Convention, which protects the right to life of “[e]veryone”, does not cover the unborn child, while in another, it held that in certain circumstances, the foetus may be covered by Article 2 and that its interests must be weighed against those of the mother. Thereafter, the European Court of Human Rights in Vo v. France took refuge under the margin of appreciation doctrine, failing to decide one way or another. This doctrine gives the discretion to the Member States to decide on a course of action on a right in the Convention, subject to supervision by the European Court. If there is a consensus in practice among the Member States, the margin of appreciation (discretion) accorded to each State is lower. If, however, there is no consensus, the margin of appreciation to each State is wider. In Vo, the Court stated that there was no consensus among states as to whether protection should be accorded to the foetus, or as to when life is said to begin. It merely summarised the decisions of the Commission as well as its own and noted that the unborn child is not directly protected by Article 2. It opined that “in certain circumstances, safeguards may be extended to the unborn child”. According to a wide margin of appreciation to States, the Court avoided giving a definitive answer on whether the unborn child has a right to life.
The American Declaration of Human Rights avoids any mention of the right to life of the unborn child. The American Convention on Human Rights, however, specifically states in Paragraph 1 of Article 4 that, “[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.” The “in general” was inserted by way of compromise, so that parties to the Convention could legislate for “the most diverse cases of abortion”.
The issue of the right to life of an unborn child has been hotly debated in the United States of America. In the landmark decision of Roe v. Wade, the Supreme Court of the USA upheld the right of a woman to terminate her pregnancy as part of her right to personal privacy. This right, according to the Court, is qualified by important state interests in regulation – the health of the pregnant woman and the potentiality of human life. It also held that the word “person” in the Fourteenth Amendment does not include the unborn child. However, the pro-life movement has several supporters in the USA, which explains why State responses have been principally inconsistent with Roe v. Wade. Some States have made it extremely difficult to get an abortion, either by punishing doctors or by banning abortions from a very early stage of the pregnancy. Pro-life activists have been conducting an annual “March for Life” since the year Roe v. Wade was decided.
Arguments and decisions of this sort have been hitherto absent in India. It is worth exploring, nevertheless, whether the unborn child may seek shelter under the large umbrella of Article 21 of the Constitution of India.
Is There a Right to be Born Under Article 21?
Article 21 guarantees to persons the right to “life and personal liberty” except in accordance with the procedure established by law. As discussed earlier, the pro-life/pro-choice debate has found traction in the United States of America, where there has been vocal support for considering a foetus to be human. However, this debate is entirely absent in India, even in recent times. Article 21 does not seem to be informed by Christian values. It is not conceivable that the Constituent Assembly took the unborn child to have rights in the law when drafting the Constitution. From this perspective, the High Court was most certainly wrong in reading the debate into the Indian Constitution by holding that the unborn child has a right to life under Article 21.
Even if one attempts to read the right to life of the foetus into Article 21 on the pretext that the pro-life/pro-choice debate has now arisen in India, they must first deal with this question: can the foetus even be considered a person in the eyes of the law? There is a lack of clarity on whether a foetus is alive at all, when a foetus begins to be alive, and therefore, whether it is a person. Relying on any one or more of these may lead to great confusion and differences in judicial opinion on whether and when a foetus is to be accorded rights (until the Supreme Court upholds one or another viewpoint). It merits the question of whether a foetus ought to be recognised as a person at all, if only to avoid confusion.
However, there is a compelling reason for not recognising foetal rights under Article 21 under any circumstance. It could lead to a significant conflict with several of the rights of the woman bearing the child in cases where she wishes to abort. A balancing test by the court might put the matter to rest. However, keeping the option of prioritising the unborn child over the mother open will constitute not one, but three violations of the mother’s rights. First, the mother’s right to life and personal liberty under Article 21 is taken away by not giving her the power to make decisions about her body. Second, forcing a woman to continue into a pregnancy against her wishes violates her right to (physical, mental, sexual, and reproductive) health, also under Article 21. Finally, putting the life of the unborn child before the mother puts her on an unequal footing because of her sex as it prohibits her from enjoying her right to health in the same way as men, who may opt for any medical procedure they need or want; this constitutes discrimination on the basis of sex and is a violation of Article 15 of the Constitution.
Clearly, recognising the right to life of the unborn child causes significant problems to the rights of others in these circumstances. It, therefore, seems inappropriate to recognise the right to life of the unborn child in any circumstance, lest it be applied to a situation where a pregnant woman wants to undergo an abortion.
At the same time, failing to acknowledge that the foetus is important in some way can have detrimental effects. Sex-selective abortion continues to be a prevalent practice in India, in furtherance of long-standing discriminatory attitudes towards all women in society. The State must prevent this discrimination and therefore has a compelling interest in protecting the life of the foetus. By acknowledging the State’s compelling interest in protecting the foetus, the pregnant woman’s rights may be exercised in a qualified manner through the MTP Act without a judicial balancing of competing rights. We therefore propose that the rights framework be discarded entirely for unborn children.
There are several ways in which the State may protect its interests in the unborn child, or the interests of the unborn child itself, without taking recourse to a rights-based approach. In addition to laws on sex-selective abortion, we find examples of this in many places in the law: the qualifications to a woman’s right to abort under the MTP Act; the punishments in the IPC for causing miscarriage, death by an act with the intent to cause a miscarriage, or causing the death of a quick unborn child by an act that would amount to culpable homicide; succession law; and the law on the transfer of property. The undisturbed existence and growth of a foetus is important to society, which merits providing protection to it before its birth. However, the existence of these laws does not imply that a foetus has a fundamental right to be born, or has fundamental rights at all.
The recent decisions of the Rajasthan High Court which held that a foetus has the right to life sought to reinterpret the apex court’s existing position which has viewed women’s reproductive autonomy as a fundamental right. However, the reinterpretation was bereft of any sound analysis of scientific literature or reference to precedents supporting such a conclusion.
Moreover, the decision of the High Court was completely removed from the Indian socio-political context. It is not the same in countries of the European Union of the USA, where the debate has been raging on for years. Because of a lack of consensus on the issue between different nations with their diverse belief systems, international instruments and bodies have also typically avoided taking sides, and have left it to individual states to reasonably decide their stance depending on their socio-cultural contexts. Roe v. Wade upheld the right of a woman to abort, but not without acknowledging that protecting life is a compelling State interest. It is surprising that in the absence of debate on the right to life of the unborn child in India, the High Court saw it fit to take a pro-life stance. Lastly, we find that recognising the rights of the unborn child causes severe harm to three existing rights of the woman bearing the child – her right to personal liberty, her right to health, and her right not to be discriminated against on the basis of sex. Therefore, it is best to abandon the rights framework for foetuses entirely. Without taking recourse to a rights-based approach, the State may protect its interest in the unborn child while also ensuring that the interests of the unborn child are protected through special provision
Views are personal.
Image credits: Rick Bowmer/AP
ABOUT THE AUTHOR
Ashwin Pantula is currently a Law Clerk – cum – Research Assistant in the Supreme Court of India. Nupur Raut is an advocate, currently practicing in Mumbai.
 S (name withheld) v. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 14827/2019), available at https://hcraj.nic.in/cishcraj-jdp/storefiles/createordjud/206800148272019_3.pdf.
 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
 Z v. State of Bihar & Ors., (2018) 11 SCC 572; Nisha Vaishnav v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 1271/2019, Rajasthan High Court).
 The “compelling interest” language is derived from the observations of the US Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), which discusses the point at which the State interest in protecting the potentiality of human life becomes “compelling”.
 X v. United Kingdom, Appl. No. 8416/79, admissibility decision of 13 May 1980.
 H v. Norway, No. 17004/90, Commission decision of 19 May 1992.
 Vo v. France, judgment of 8 July 2004.
 Inter American Court of Human Rights, White and Potter (Baby Boy) v. United States, Resolution 23/81, Case 2141, March 6, 1981; OEA/Ser.L/V/II.54, Doc. 9 rev. 1, 16 October 1981.
 Roe v. Wade, 410 U.S. 113 (1973).
 Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994.
 S. 20, Hindu Succession Act, 1956.
 S. 13, Transfer of Property Act, 1882.
Access more posts related to right to life here.